Divorce In Church History

ISSUES OF DIVORCE IN THE ORTHODOX CHURCH

To petition for Ecclesiastical Divorce and attend the Spiritual Court should be considered as an extension of the Sacrament of Holy Confession. The petitioning priest and the members of the Spiritual Court are reminded of the sensitive and confidential nature of this process. Its purpose is neither to justify nor condemn anyone, but rather to facilitate the process of healing and reconciliation to the Body of Christ. Your help is needed in explaining that this is a pastoral and healing ministry, rather than a legalistic formality.(Procedures of Metropolis of Chicago, September 2004)

Marriage, Divorce, and Mixed Marriages

Marriage is one of the sacraments of the Orthodox Church. Orthodox Christians who marry must marry in the Church in order to be in sacramental communion with the Church. According to the Church canons, an Orthodox who marries outside the Church may not receive Holy Communion and may not serve as a sponsor, i.e. a Godparent at a Baptism, or as a sponsor at a Wedding. Certain marriages are prohibited by canon law, such as a marriage between fist and second cousins, or between a Godparent and a Godchild. The fist marriage of a man and a woman is honored by the Church with a richly symbolic service that eloquently speaks to everyone regarding the married state. The form of the service calls upon God to unite the couple through the prayer of the priest or bishop officiating.

The church will permit up to, but not more than, three marriages for any Orthodox Christian. If both partners are entering a second or third marriage, another form of the marriage ceremony is conducted, much more subdued and penitential in character. Marriages end either through the death of one of the partners or through ecclesiastical recognition of divorce. The Church grants "ecclesiastical divorces" on the basis of the exception given by Christ to his general prohibition of the practice. The Church has frequently deplored the rise of divorce and generally sees divorce as a tragic failure. Yet, the Orthodox Church also recognizes that sometimes the spiritual well-being of Christians caught in a broken and essentially nonexistent marriage justifies a divorce, with the right of one or both of the partners to remarry. Each parish priest is required to do all he can to help couples resolve their differences. If they cannot, and they obtain a civil divorce, they may apply for an ecclesiastical divorce in some jurisdictions of the Orthodox Church. In others, the judgment is left to the parish priest when and if a civilly divorced person seeks to remarry.

Those Orthodox jurisdictions which issue ecclesiastical divorces require a thorough evaluation of the situation, and the appearance of the civilly divorced couple before a local ecclesiastical court, where another investigation is made. Only after an ecclesiastical divorce is issued by the presiding bishop can they apply for an ecclesiastical license to remarry.

Though the Church would prefer that all Orthodox Christians would marry Orthodox Christians, it does not insist on it in practice. Out of its concern for the spiritual welfare of members who wish to marry a non-Orthodox Christian, the Church will conduct a "mixed marriage." For this purpose, a "non-Orthodox Christian" is a member of the Roman Catholic Church, or one of the many Protestant Churches which believe in and baptize in the name of the Holy Trinity. This means that such mixed marriages may be performed in the Orthodox Church. However, the Orthodox Church does not perform marriages between Orthodox Christians and persons belonging to other religions, such as Islam, Judaism, Buddhism, Hinduism, or any sectarian and cult group, such as Christian Science, Mormonism, or the followers of Rev. Moon.

The parish priest must exert every effort to reconcile the couple and avert a divorce. However, should he fail to bring about a reconciliation, after a civil divorce has been obtained, he will transmit the petition of the party seeking the ecclesiastical divorce, together with the decree of the civil divorce, to the Spiritual Court of the Diocese. The petition must include the names and surnames of the husband and wife, the wife's surname prior to marriage, their addresses, the name of the priest who performed the wedding, and the date and place of the wedding. The petitioner must be a member in good standing with the parish through which he or she is petitioning for divorce. Orthodox Christians of the Greek Orthodox Archdiocese who have obtained a civil divorce but not an eccle¬siastical divorce may not participate in any sacra¬ments of the Church or serve on the Parish Council, Diocesan Council or Archdiocesan Council until they have been granted a divorce by the Church.

The Roman Catholic traditional view, canonical regulations on divorce and remarriage are based on two presuppostions. 1) Marriage is a legal contract, and for Christians is legally indissoluble. 2) The marriage contract concerns only earthly life and therefore, is legally dissolved by the death of one partner.The Orthodox approach starts from different presuppositions. 1) Marriage is a sacrament conferred upon the partners in the Body of the Church through the priest’s blessing. As any sacrament, marriage pertains to the eternal life in the Kingdom of God and therefore, is not dissolved by the death of one partner. An eternal bond is created between them—“it is given to them” (Matthew 19:11). 2) As sacrament, marriage is not a magical act, but a gift of grace. The partners, being humans, may have made a mistake in soliciting the grace of marriage when they were not ready for it; or they may prove to be unable to make this grace grow to maturity. In those cases, the Church may admit the fact that the grace was not “received,” tolerate separation and allow remarriage. But, of course, she never encourages any remarriage—we have seen that even in the case of widowers—because of the eternal character of the marriage bond; but only tolerates it when, in concrete cases, it appears as the best solution for a given individual.

Christ repeatedly condemned divorce (Mt. 19:8-9; 5:31-32; Mk. 10:2-9; Lk. 16;18). The indissolubility of marriage does not imply the total suppression of human freedom. Freedom implies the possibility of sin, as well as its consequences; ultimately, sin can destroy marriage. Nowhere does the New Testament explicitly condone remarriage after divorce. St. Paul, who discourages but permits remarriage of widowers, is very negative concerning the remarriage of divorcees: “To the married I give charge, not I but the Lord, that the wife should not separate from her husband—but if she does, let her remain single or else be reconciled to her husband—and that the husband should not divorce his wife” (1Cor. 6:10-11).

In the Christian Empire under Constantine, Theodosius, Justinian and others, laws defined the various legal grounds and conditions on which divorce and remarriage were permissible. It is sufficient to say that they were relatively lenient. However, no Father of the Church ever denounced these imperial laws as contrary to Christianity. St. Epiphanius of Cyprus (d403) says, “He who cannot keep continence after the death of his first wife, or who has separated from his wife for a valid motive, as fornication, adultery, or another misdeed, if he takes another wife, or if the wife takes another husband, the divine word does not condemn him nor exclude him from the Church or the life; but she tolerates it rather on account of his weakness” (Against Heresies).

However, the Church always remained faithful to the New Testament ideal. Only the first and unique marriage was blessed in Church during the Eucharist. As seen above, second and third marriages, after widowhood, were concluded at a civil ceremony only, and implied a penance of one to five years of excommunication. After this period of penance, the couple was again considered as full members of the Church. A more prolonged penance was required for married divorcees (see canon 87 of Sixth Ecum. Council). The classification of the marrying divorcees among the adulterers—in strict conformity with the Gospel text—implied that they spent sufficient time standing in Church not among the faithful, but at the doorway, with the “weepers,” the “hearers” (i.e., those who listened to Scripture, but were not admitted to the sacraments), and the “prostrators” (i.e., those who held, during certain parts of the service, a prostrated position, instead of sitting or standing).

The Church, therefore, neither “recongized” divorce, nor “gave” it. Divorce was considered as a grave sin; but the Church never failed in giving to sinners a “new chance,” and was ready to readmit them if they repented. Only after the tenth century, when it received from the emperors the legal monopoly of registering and validating all marriages, was the Church obliged to “issue divorces.” It did it generally in conformity with civil legislation of the Roman Empire, and later with that of the various countries in which it developed. But this new situation greatly obliterated in the consciousness of the marriage. Both the Church marriage and the “Church divorce” appeared as a mere formality giving external legality to acts which were generally quite illegitimate from the Christian point of view.

Practically, and in full conformity with Scripture and Church tradition, I would suggest that our Church authorities stop “giving divorces” (since they are secured by civil courts), and rather on the basis of recognition, based upon the civil divorce, that marriage does not in fact exist, issue “permissions to remarry.” Of course, in each particular case pastoral counseling and investigation should make sure that reconciliation is impossible; and the “permission to remarry” should entail at least some forms of penance (in conformity with each individual case) and give the right to a Church blessing according to the rite of “second marriage.”

ORTHODOX CANON LAWManual by Dr. Lewis Patsavos (p.135-

According to Orthodox teaching, one of the essential characteristics of marriage is its indissolubility. Consequently, a legitimate marriage is dissolved only through death, or through an event which revokes the ecclesiastical significance of marriage, refutes its religious and moral foundation, and is in other words religious or moral death.

Divorce caused by religious or moral death occurs by itself when the basis of marriage ceases to function and the purpose of the marital bond is therefore frustrated. In such an instance, it is not the competent authority which dissolves the marriage. Rather, this authority only formally certifies that the legitimate marriage has lost its basis and has dissolved itself.

Marriage is as old an institution as the human race itself. Consequently, the legal basis for both marriage and divorce was established long before Christianity itself. In ancient Roman society the dissolution of a marriage was left up to the free consent of the spouses. Both spouses decided by mutual consent to dissolve their marriage, or else one of the spouses sent a libel (formal written declaration) to the other, and this libel was sufficient for the marriage to be considered dissolved. When, however, relations between Church and State had been reconciled, the Church accorded to the institution of marriage the fitting place it deserves. Consequently, legislation was issued guaranteeing the sanctity of marriage. The first step in this direction was the abolition of divorce by mutual consent. It took many centuries, however, before the Church was able to thoroughly influence the state to take the appropriate measures abolishing this type of divorce. It wasn’t until the 9th century, the same century that the ecclesiastical wedding ceremony was totally recognized by the state as having a legal character, that canonical grounds for divorce were established by the competent ecclesiastical authority.

1. Canonical Grounds for Divorce

Adultery- the violation of conjugal fidelity by either one of the spouses. In view of the exalted position in which marriage is held by the Church, adultery is equated to death, because it upsets the basis of the marital bond and distresses the purpose of marriage.

Apostasy- the abandonment of the Christian faith by one of the spouses.

Sponsorship of One's Own Child- at baptism (spiritual relationship arising thereby between baptized child's parents constitutes an impediment to marriage).

Entry into the Monastic Life- of one of the spouses upon the consent of the other spouse.

2. Civil Grounds for Divorce

There is no uniformity in the grounds for divorce adopted by the legislative authority in most countries since each country determines its own laws regarding the reasons for divorce. In some countries adultery is about the sole cause of divorce. In other countries, on the other hand, even the compatibility due to difference of character is considered sufficient grounds for divorce.

3. Legal Consequences of Divorce

Through divorce the marital bond is dissolved and the spouses return to the relationship which preceded their marriage. Inheritance matters of the former spouses are regulated according to the legal decrees of the state.In the Commonwealth of Massachusetts the divorce issued in a court of the first instance is called “decree nisi”. The “decree nisi” is conditional, being operative unless one of the parties involved shall show cause to the contrary. If within a period of six months there is no contestation to the terms of the divorce, the divorce becomes final.

Upon the issuance of the court’s final decision, both spouses are free to enter a new marriage. As for the guilty party in a divorce suit, if one is determined by the court, he or she is usually compelled to wait 2 years before remarriage by the Church.

The children of a dissolved marriage are usually given to the innocent party, unless the court decides otherwise, either with or without the consent of both parents. The expenses for the support and education of the children are usually provided by the husband, unless he is indigent. The court responsible issuing the divorce also resolves this question of alimony.